Anil Dhall vs Union Of India And Others
1999 Latest Caselaw 758 Del

ORDER

A.K. Sikri, J.

1. On 27th December, 1982 petitioner was commissioned in the Army Medical Corps (Indian Army) having passed the MBBS degree from Armed Forces Medical College Pune. In the year 1990 he completed his M.D (Medicine) from Bombay University. On 28th March, 1996 Petitioner started his post-doctoral training in Cardiology from 184 Military Hospital (MH). Subsequently on having obtained an Open Merit Competitive Vacancy in the G.B. Pant Hospital, New Delhi he was moved by the Army Headquarter to Delhi in May, 1996. He was on two years study leave for doing this course. Since the two years study leave of the petitioner was due to expire prior to his DM examination he requested for posting in Delhi to enable him to complete his training. However on 24th February, 1998 he was transferred to Command Hospital Udhampur. Accordingly he took two months annual leave from Udhampur to clear his examination at Delhi which he passed in April, 1998.

2. It is the case of the petitioner that on 8th May. 1998 he was called to the Office of Respondent No. 3 i.e. Directorate General of Medical Services (Army) (hereinafter referred to as DGMS, for short) and was told that a new Cardiac Catheterization and interventional Laboratory was being set up in Army Hospital Research and Referral, Delhi Cant and in view of petitioner's broad based exposure to all varieties of Interventional Cardiology procedures his posting was being changed from Command Hospital, Udhampur to Army Hospital (R&R) Delhi. Accordingly, on 13th May, 1998, respondent No. 3 issued orders posting the petitioner to Army Hospital (R&R), Delhi Cant and he joined thereon 17th May, 1998. Petitioner further states that he toiled hard to set up the Cardiac Catheterization and Interventional Services in the Army Hospital and made the same fully functional.

3. In July 1998 petitioner was informed by the President Cardiological Society of India that he had been specially selected by the World Heart Federation based in Geneva, for an international fellowship in Cardiac Electrophysiology commencing on 1st October, 1998. However for reasons best known to respondents, petitioner was not allowed to avail of such a rare offer and resultantly his fellowship lapsed which was not only a professional loss but it was a great loss to Armed Medical College also.

4. Petitioner was allotted permanent married governmental accommodation in March, 1999 after his posting in Delhi on 17th May, 1998. He submits that he was trying to settle down domestically since as per the policy of the respondents normal tenure in the army hospital in 3-5 year. However, he was shocked to receive order dated 14th May, 1999, in less than one year of his posting in Delhi, transferring him to military hospital, Cardio-Thoracic Center, Pune as an Interventional Cardiologist. However, this posting was cancelled vide order dated 28th May, 1999 and he was again posted at Command Hospital Pune where no facility was available for Interventional Cardiology in which the petitioner specialised. Petitioner submitted his representation dated 1st June,1999 against this premature and in discriminatory transfer order of the DGMS-respondent No.3 and requested for cancellation of this premature transfer by reconsidering their decision. Respondents No.3 however rejected his representation vide communication dated 2nd July, 1999. Aggrieved against the same, petitioner had filed the present writ petition challenging his transfer order dated 28th May, 1999.

5. This matter came up for hearing on 6th August, 1999 when show cause notice was issued in the writ petition and in Civil Miscellaneous Application No. 8858 of 1999 stay of transfer was given and respondents who were represented in the court were directed to produce the record relating to transfer of the petitioner. Respondents thereafter filed their counter affidavit to which rejoinder was filed and with the consent of the parties the matter was finally argued on 23rd August, 1999. During the course of the argument, respondents produced the relevant records also.

6. Learned counsel for the petitioner, Mr. R.P. Sharma has challenged the transfer on the following grounds:-

1. The impugned transfer is against respondents own policy as per which normal tenure is 3-5 years but petitioners was transferred within one year of his stay in Delhi.

2. Transfer order passed are arbitrary and mala fide.

7. Before dealing with the aforesaid contention it may be stated that law relating to transfers is now well settled by catena of judgments pronounced by Supreme Court. Transfer is an administrative function. An employer is the best judge about the requirement and posting of its employees. Courts are not to interfere with the discretion of the employer in such matters. Scope of judicial review is very limited and the transfer can be challenged only under two circumstances namely, (a) when their transfer is an act of mala fides on the part of the respondents; (b) when it is made in violation of statutory provision.

8. In Union of India Vs. S. L. Abbas equivalent to AIR 1993 SC 444, the Supreme Court made the following pertinent observations:-

"An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer the appropriate authority must consider the same having regard to the exigencies of administration."

9. To the similar effect are the observations of Supreme Court in the case of Union of India Vs. N.H. Kirtania , Shilpi Bose Vs. State of Bihar reported in 1991 Supp. (2) SCC 659, Union of India Vs. N.P. Thomas , Abani Kanta Ray Vs. state of Orissa reported in 1995 Supp, (4) SCC 169, and N.K. Singh Vs. Union of India . It is not necessary to multiply judgments. However, it would be apt to quote the following observations of Supreme Court in the case of N.K. Singh Vs. Union of India (supra) :-

"Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superior to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all Government Departments. This must be left, in public interest to the departmental heads subject to the limited judicial scrutiny indicated.

It was also observed that :

"Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the Government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out."

10. In view of the aforesaid settled position it is to be seen whether the petitioner has been able to make out a case of judicial review within the parameters mentioned above which may call for interference with the transfer order of the petitioner by this court.

11. Insofar as first ground of challenge is concerned, that need not detain us for long inasmuch as admittedly there is no statutory provision which is violated in transferring the petitioner from Delhi to Pune. It is an admitted case that the petitioners is having all India transfer liability. What is argued by learned counsel for the petitioner is that the impugned transfer is against the respondent own policy as per which normal tenure should be 3-5 years. Respondents have alongwith their counter affidavit, produced the said policy as Annexure P-2 to the writ petition which is dated 11th March, 1998 and heading of which is Policy Guidelines Compassionate posting/Cancellation/Department of posting". Appendix 'A' to this policy tenure of appointment and as per the same petitioner is covered by Serial No. 3 (d) being a specialist and therefore the normal tenure in his case is 3-5 years. However, para 3 and 16 of this guidelines being relevant are quoted below:-

Para 3:

Tenure of Appointment - The stipulated tenure of appointments in respect of AMC officers AMC NT Officers is attached as per Appx. A. to this letter. It is clarified that the tenure of appointments as stated in the appx are only a guideline for the purpose of posting and the organisational requirements will always have an over riding consideration over the stipulated tenures.

Para 16:-

The instructions and guidelines is not confer any right on officers to represent against posting quoting these orders. Such representation if made need not be fwd to this HQ and will be dealt with by DDs MS command. It is also clarified that the organisational requirement will always override the stipulation of tenure as stated above.

12. From the aforesaid two things are clear: (i) that these are merely guidelines and (ii) it is specifically stated in these guidelines and that even tenure of appointment stated in Appendix "A" are only guideline for the purpose of posting and the organisational requirement will always have a over-riding consideration over the stipulated tenures. It is further clarified in para 16 quoted above, that these instructions and guidelines do not confer any right on officers represent against posting quoting these orders.

13. In view of this position arguments of the petitioner that he has right to stay at Delhi for 3-5 years, based on these guidelines, has no merit. In the case of Union of India Vs. S.L. Abbas (supra) it was held that such guidelines/instructions do not confer any right on the employee to challenge the transfer order on the ground of violation thereof, Merely because the guidelines are violated is not sufficient to quash the order as being mala fide. Order of transfer on an administrative grounds can still be passed even if it is in violation of such guidelines which have no statutory force and administrative exigencies have to give way to these guide-lines. In the case of Bank of India Vs. Jagjit Singh Mehta dealing with the case of posting of husband and wife at one station as per government guidelines, it was held by Supreme Court, that such guidelines would not confer any right on the employee to remain at same place. The only requirement is that departmental authority should consider this aspect alongwith exigencies of administration. In the present case it is mentioned in guidelines itself that they would not confer any right on the officers to represent against posting quoting these orders. Therefore petitioner cannot, as of right, state that he should be allowed to remain in Delhi for a period of 3-5 years as per these guidelines. As no such right can be claimed by the petitioner, it is not open to the petitioner to allege the violation of these guidelines and make the same as basis to challenge transfer.

14. Mr. U. hazarika, counsel for the respondent submitted that the representation of the petitioner was considered and reflected on merits. He went on to explain that even in the representation dated 1st June, 1999 preferred by the petitioner gave two ground for cancellation of the transfer orders, namely: (i) house construction and (ii) other reasons. As per the guideline dated 11th March, 1998 itself, compassionate posting on the ground of house construction is to be considered only in exceptional cases. Insofar as "other reasons" are concerned, Mr. Hazarika pointed out that reading of such reasons in the representation dated 1st June, 1999 would show that they fall in the category of "multiple reasons" as mentioned in guidelines dated 11th March, 1998, and are vague. According to learned counsel for the respondent, the representation after consideration on merits was rejected.

15. As far as challenge to the impugned transfer order on the ground of mala fide is concerned, a perusal of the writ petition would show that no allegations of mala fide are made against any particular official. In fact there are no specific allegation of mala fides at all. Mr. R.P. Sharma, learned counsel for the petitioner however argued that impugned order is arbitrary and mala fides are to be inferred from the antecedent facts and circumstances of the case. He has, in support of his argument referred to the judgment of Supreme Court in the case of Rajendra Roy Vs. Union of India and another and particularly the following passage from the said judgment:-

"....It is not always possible to establish "malice in fact" in a straight cut manner. In an appropriate case, it is reasonable to draw inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference, there must be firm foundation of facts pleaded and established.... "

16. He has also referred to the following judgment of Supreme Court:- E.P. Royappa Vs. State of Tamil Nadu , Sri Abani Kanta Ray Vs. State of Orissa and other and Shri Arvind Dattatraya Dhande Vs. State of Maharashtra, .

17. He has also relied upon the judgment of the Bombay High Court in the case of Sham Rao Chandrappa Kumble Vs. Deputy Engineer (P&C), Panchayat Samiti Miraz and others reported in 1998 LIC 726. He argues that in the aforesaid judgments it is clearly held that if the transfer is shown to be clearly arbitrary or vitiated by mala fide and it is mala fide exercise of powers, such transfer should be quashed.

18. Mr. R.P. Sharma, counsel for the petitioner vehemently argued that all the antecedent facts and circumstances taken in totality in the present case, would clearly lead to the inference that the impugned order passed in this case suffers from vice of arbitrariness. He particularly referred to paras 25 to 28 of the writ petition and contended that many officers of his fraternity were allowed to continue in Delhi even though they had completed longer tenure than the petitioner. In this connection, specific names of Lt. Col. B.S. Kalra and Lt. Col. Y.K. Arora were mentioned. If was further submitted that respondents had wrongly computed his two years study leave that he had spent in G.B. Pant Hospital in connection with D.M. course while computing the period of his stay in Delhi and even if that is to be included the respondents could not resort to pick and choose policy because there were officers in Delhi who had spent 2-3 years for study in Delhi and which was followed by 3-5 years of posting in this city. Names of these officers are given in Annexure P-7. It is also stated that in some of the cases, details of which are given in Annexure P-8, officers who had started their study leave at the same time as he did and were subsequently posted to Delhi on completion of study leave are yet to be posted out of Delhi. It is further alleged that his transfer to Pune is to accommodate Lt. Col. S.S. Kashyap who has been posted back to Army Hospital (R&R) in Delhi in less than two years. It was submitted that the respondents have not given any categorical reply to the aforesaid submission in their counter affidavit. It was also submitted that his representation dated 1st June, 1999 was duly recommended by his Commanding Officer who is better judge of the situation and this recommendation should not have been ignored by respondent No.3. Petitioner on the basis of these allegations contends that the impugned transfer suffers from malice in fact.

19. The question that arises for consideration is as to whether the afore-said allegations levelled by the petitioner would constitute arbitrariness or mala fide. As already noted above, no specific allegation of mala fides are levelled against any particular officer. Petitioners only wants inference of mala fide to be drawn from the aforesaid circumstances.

20. No doubt allegations made in para 25-28 of the writ petition are not separately dealt with by the respondents in the counter affidavit and only one consolidated reply is given to paras 26-29. However, in this it is stated in reply that posting of specialist officer after study leave to a super speciality center is based on the nature of the speciality, availability of other specialists in concerned super speciality and the service requirement. It is further stated that in each of the cases of specialists officers cited by the petitioner, the decision was based purely on organisational requirement without any extraneous considerations as alleged by the petitioner. There are several officers who are posted to the same station after study leave for a limited tenure of one year only and then posted out to other centers where their services are required. Since respondents were directed to bring record at the time of hearing, Mr. Hazarika also produced the record relating to these officers. It was also argued that there may be individual cases of longer tenure and likewise there are cases where officers are transferred within less than one year posting in Delhi, after their study leave, and therefore no inference of arbitrariness can be drawn merely because some officers with longer tenure than the petitioner are staying in Delhi. Mr. Hazarika, learned counsel for the respondent, in fact produced list of many such officers who were transferred within one year of their posting in Delhi after they had availed study leave in Delhi. It was thus argued that it cannot be treated as a case of pick and choose. Insofar as the case of Lt. Col. S.S. Kashyap is concerned record relating to his transfer was also produced. It was mentioned that he had made request for transfer to Delhi on compassionate ground i.e. treatment of his ailing child in Delhi. Lt. Col. S.S. Kashyap had made request for his transfer vide applications dated 17th July, 1998 and 15th September, 1998 and finally in his letter dated 14th December, 1998 it was emphasised that the condition of his daughter had deteriorated and he had requested for personal audience. The matter was thereafter considered and Lt. Col. S.S. Kashyap was transferred to Delhi. Therefore it is wrong to allege that petitioner was transferred out to accommodate Lt. Col. S.S. Kashyap. According to respondents the two cases had no connection to each other. While Lt. Col. S.S. Kashyap was transferred to Delhi because of his daughter's ailment which is a ground that could be taken into consideration as per guidelines dated 11th March, 1998, the petitioner's case for transfer was in the administrative exigency and is not at all linked with the case of Lt. Col. S.S. Kashyap. It is stated by the respondents in the counter affidavit, as mentioned above, that in each case of specialised officers cited by the petitioner the decision was purely based on organisational requirement without any extraneous consideration. In fact, as per the respondents, petitioner is shown preferential treatment and indulgence during his tenure. In this respect it is stated in the counter affidavit as under:-

"That in fact, contrary to the allegations, the Petitioner has been given preferential treatment during his service tenure. The Petitioner in fact was supposed to have gone on study leave in 1993, itself and as a special case and a special consideration shown to him he was permitted to defer his going on study leave until 1996 i.e. upto a period of three years. In fact, the Petitioner had undergone disciplinary proceedings resulting in "REPROOF" being given to him. Despite, such proceedings the Respondents nevertheless permitted the Petitioner to join in 1996. This is borne out by various correspondence and more specifically by letters dated 27.12.1993, 9.11.1994, 30.3.1995 and 1.12.1995, copies of which are annexed hereto and marked as Annexure R-2 Colly."

21. Mr. Hazarika read out the aforesaid letters as per which petitioner had requested for extention of stay in Delhi from time to time and the same was sanctioned to him.

22. Even otherwise, no inference of mala fides can be drawn form the allegations made by the petitioner and explained away by the respondents in the manner indicated above. In the case of State of Uttar Pradesh Vs. Dr. V.N. Prasad reported in 1995 (2) SCC 151 it was held by the Supreme Court that nature of evidence to establish mala fides in passing the transfer order has to be strong and convincing. It was further held that in the absence of prima facie material to establish mala fides of the transfer order presumption of bona fides would be drawn. It may also be useful to refer to the following observations of Supreme Court in the case of Rajender Roy Vs. Union of India .

"It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions.

23. It was next contended by the petitioner that the transfer order is discriminatory which is to be inferred from the fact that there are some officers who are against the petitioner and that is why the petitioner was not allowed to avail the fellowship offered by World Heart Federation, Geneva. In the counter affidavit, respondents have explained that petitioner's request was considered by a high level committee of the Medical Services Officers' Committee (M.S.A.C.), M.S.A.C. rejected his request in its meeting held on 30th November, 1998. Be as it may this allegation relating to of an event that happened in July, 1998 one cannot infer that the impugned transfer order passed in May, 1999 is discriminatory or arbitrary.

24. For the aforesaid reasons writ petition and application, which are devoid of merit, are hereby dismissed. Interim stay granted on 6th August, 1999 is hereby vacated. No order as to costs.